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A prosecutor in Arizona has decided not to press charges against Uber in the March 2018 death of Elaine Herzberg. One of Uber's self-driving cars crashed into Herzberg as she crossed a multi-lane road in Tempe, Arizona.

"After a very thorough review of all evidence presented, this office has determined that there is no basis for criminal liability for the Uber corporation," wrote Yavapai County Attorney Sheila Sullivan Polk in a letter dated Monday.

Tempe is in Maricopa County, not Yavapai County. But Maricopa County once collaborated with Uber on a public safety campaign. So prosecutors referred the case to Yavapai County to avoid any potential for a conflict of interest.

While Uber appears to be off the hook, Uber driver Rafael Vasquez could still face criminal charges. Dashcam video showed Vasquez repeatedly looking down at her lap in the final minutes before the crash—including five agonizing seconds just before her car struck Herzberg. Records obtained from Hulu suggest that Vazquez was streaming the television show The Voice just before the fatal crash.

Yavapai County Attorney Polk said she didn't have enough information to decide whether it would be appropriate to charge Vasquez. She encouraged Maricopa County to hire an expert to analyze video footage from the crash to determine "what (and when) the person sitting in the driver's seat of the vehicle would or should have seen that night given the vehicle's speed, lighting conditions, and other relevant factors."

Uber avoided a potential lawsuit from Herzberg's family by settling with them days after Herzberg's death.

“We shouldn’t be hitting things every 15,000 miles”

The National Transportation Safety Board has also been investigating the March 2018 crash. NTSB is strictly an investigatory agency—it doesn't have the power to prosecute anyone. But the agency issued a damning preliminary report about the crash last May.

"Emergency braking maneuvers are not enabled while the vehicle is under computer control, to reduce the potential for erratic vehicle behavior," the NTSB reported. "The vehicle operator is relied on to intervene and take action." However, "the system is not designed to alert the operator" if an emergency braking action is needed.

And we now know that a whistleblower warned about safety problems with the self-driving program just days before Herzberg's death.

"A car was damaged nearly every other day in February," wrote Robbie Miller in a letter to several Uber executives. "We shouldn't be hitting things every 15,000 miles."

Miller wrote that, after one November 2017 incident, he felt a significant accident report was not receiving enough attention. He raised the issue with "several people" in the testing program. However, he wrote, they "told me incidents like that happen all of the time."

163 Reader Comments

We all saw this coming... and it stinks that a company that "moves fast and break things" can break people with impunity. Really undermines the credibility of the good work others are doing in the autonomous vehicle space.

So, if I transfer ownership of my car to a shell-company that loosely conducts research in the self-driving area, can I absolve myself of criminal liability for hitting things?

Slightly more seriously, does that mean Uber could still have civil liability and owe the family (or city, etc) for the accident even if nobody at Uber's self-driving car division will be prosecuted for this? Given their record, civil liability seems inadequate.

Edit: Via Timothy's post below, sounds like they already settled with the family. Google-fail on my part

Yup. Billion dollar company just can't possibly be charged, but the minimum-wage employee (contractor?) in the mind-numbing safety seat - where the car won't actually notify them when there's something to watch out for - well, they can take the fall because somebody has to.

No criminal liability for Uber, but the driver may be charged? How does that make sense? They're the ones who built the system, hired and trained that driver, disabled the emergency braking, removed the 2nd operator, failed to create a mechanism to notify the driver of the hazard... the list goes on and on.

"Emergency braking maneuvers are not enabled while the vehicle is under computer control, to reduce the potential for erratic vehicle behavior," the NTSB reported. "The vehicle operator is relied on to intervene and take action." However, "the system is not designed to alert the operator" if an emergency braking action is needed.

If there were any "Engineers" involved in that design decision, they need to be hauled in front of a professional ethics board and sanctioned.

So, if I transfer ownership of my car to a shell-company that loosely conducts research in the self-driving area, can I absolve myself of criminal liability for hitting things?

Slightly more seriously, does that mean Uber could still have civil liability and owe the family (or city, etc) for the accident even if nobody at Uber's self-driving car division will be prosecuted for this? Given their record, civil liability seems inadequate.

Uber already settled with the family. Actually I'm gonna add a sentence about that to the story.

"Emergency braking maneuvers are not enabled while the vehicle is under computer control, to reduce the potential for erratic vehicle behavior," the NTSB reported. "The vehicle operator is relied on to intervene and take action." However, "the system is not designed to alert the operator" if an emergency braking action is needed.

If there were any "Engineers" involved in that design decision, they need to be hauled in front of a professional ethics board and sanctioned.

I think you mean "professional engineer" which has a very limited membership.i.e. Given its Uber, i'd be surprised if they had any working for them.

"Emergency braking maneuvers are not enabled while the vehicle is under computer control, to reduce the potential for erratic vehicle behavior," the NTSB reported. "The vehicle operator is relied on to intervene and take action." However, "the system is not designed to alert the operator" if an emergency braking action is needed.

If there were any "Engineers" involved in that design decision, they need to be hauled in front of a professional ethics board and sanctioned.

I think you mean "professional engineer" which has a very limited membership.i.e. Given its Uber, i'd be surprised if they had any working for them.

Yeah I'd doubt that they'd have any working for them as well.

I do think that there should be a code of ethics that people working in self-driving cars should adhere to, and be professionally responsible to. After all, failures in a self-driving car put the public at risk, as do failures in structural engineers. Yet the PE who signs off on flawed structural calculations is professionally liable, but the software "engineer" who signed off on a system that failed to alert the safety driver of an impending collision has no professional liability.

No criminal liability for Uber, but the driver may be charged? How does that make sense? They're the ones who built the system, hired and trained that driver, disabled the emergency braking, removed the 2nd operator, failed to create a mechanism to notify the driver of the hazard... the list goes on and on.

I know this isn't a popular opinion, but they had a licensed driver with a perfectly functional set of eyes and ears to notify the driver of the hazard. It may be mind numbing work, but paying attention to the road while you are in the drivers seat of a test vehicle should kind of go without saying.

They didnt just "escape" criminal charges. The prosecutor himself was of the opinion that there was no basis for it.

Quote:

"After a very thorough review of all evidence presented, this office has determined that there is no basis for criminal liability for the Uber corporation," wrote Yavapai County Attorney Sheila Sullivan Polk in a letter dated Monday.

having viewed the video, I am most curious why the driver felt comfortable watching a streamed show.

2 possibilities:

first the driver did not in fact know she was being filmed while working. not very transparent of Uber, but...

second possibility: she did know, but also knew that Uber couldn’t care less what the safety drivers were doing. remember: she’s an ex-con and while it is entirely possible (and laudable) that Uber promotes rehabilitation and reinsertion, I wouldn’t be surprised she was just cheap to hire.

did Uber at any point educate their drivers on their responsibilities and need to remain alert? especially since drivers are redundant almost all the time? what did they do to enforce it? were they grilled about it? or was it just convenient to stop at the (very guilty) driver?

Had the company been criminally charged it would have been a serious blow to the entire self driving car industry. It likely would have pushed it back years if not decades and cost thousands of lives.

How do you figure that?

This is a fledgling technology, there will be bugs, nothing is perfect. If you start throwing exec in jail for mistakes, the solution will be not to enter the market because it is too risky. This technology has the potential to dramaticly reduce accidents. Without it people will die.

Throwing execs in jail when they do blatantly unsafe things will only slow down development we didn't want, anyway.

I know this isn't a popular opinion, but they had a licensed driver with a perfectly functional set of eyes and ears to notify the driver of the hazard. It may be mind numbing work, but paying attention to the road while you are in the drivers seat of a test vehicle should kind of go without saying.

Uber made the car demonstrably less safe because they couldn't get the fucking thing to work right, turning it from a nervous Nellie into a charging bull, and they DON'T face criminal liabilities for that?

Ah, I get it. Arizona official palms were properly greased and like every major corporation, they threw the employee, who probably had no clue the engineers had changed things, under the bus.

I so hate it when the public is used for beta testers, but Uber was still in the alpha stage...

Had the company been criminally charged it would have been a serious blow to the entire self driving car industry. It likely would have pushed it back years if not decades and cost thousands of lives.

How do you figure that?

This is a fledgling technology, there will be bugs, nothing is perfect. If you start throwing exec in jail for mistakes, the solution will be not to enter the market because it is too risky. This technology has the potential to dramaticly reduce accidents. Without it people will die.

If they were hitting things every 15k miles they shouldn't have been on public roads, that's gross negligence. In fact even Tesla is now down vs humans since their number of fatalities now well exceeds where they should be in miles driven (I'm extrapolating fleet size from total vehicles sold and keeping autopilot miles per vehicle per year constant in my estimate). At this point the Level 3 systems being tested are not helping, but based on insurance data level 2 systems are (40% reduction in claims for Subaru Eyesight 2nd generation). So if your working on a level 3/4 system you need to be taking appropriate caution and due care.

Yup. Billion dollar company just can't possibly be charged, but the minimum-wage employee (contractor?) in the mind-numbing safety seat - where the car won't actually notify them when there's something to watch out for - well, they can take the fall because somebody has to.

The person in that seat accepted the job of overseeing the safe operation of the vehicle.My car does not warn me if i'm about to hit something, and if I'm on my phone during my job its a write up followed by termination if it happens again. Mix on the phone not doing the one thing that they signed up for while in a multi ton vehicle on public road while a semi-tested system in training fails and needs the human input? Paid driving may be boring but truckers manage.

Had the company been criminally charged it would have been a serious blow to the entire self driving car industry. It likely would have pushed it back years if not decades and cost thousands of lives.

How do you figure that?

This is a fledgling technology, there will be bugs, nothing is perfect. If you start throwing exec in jail for mistakes, the solution will be not to enter the market because it is too risky. This technology has the potential to dramaticly reduce accidents. Without it people will die.

It's not a simple mistake, it was a blatantly unsafe system design that would have been picked up by any competent Failure Mode and Effect Analysis, had Uber bothered to do one.

"After a very thorough review of all evidence the stack of money presented, this office has determined that there is no basis for criminal liability for the Uber corporation," wrote Yavapai County Attorney Sheila Sullivan Polk in a letter dated Monday.

"After a very thorough review of all evidence the stack of money presented, this office has determined that there is no basis for criminal liability for the Uber corporation," wrote Yavapai County Attorney Sheila Sullivan Polk in a letter dated Monday.

I really wish they'd just write these in plain English.

As unpopular as it may be, America is a country under the law. The car followed all laws to the letter.

Jaywalkers have a high chance of dying in general. Arguably Uber increased that chance irresponsibly. That is not a criminal offense and the civil portion has already been settled. There is literally nothing the prosecutor can charge Uber with no matter how much he or she may want to.

"After a very thorough review of all evidence the stack of money presented, this office has determined that there is no basis for criminal liability for the Uber corporation," wrote Yavapai County Attorney Sheila Sullivan Polk in a letter dated Monday.

I really wish they'd just write these in plain English.

As unpopular as it may be, America is a country under the law. The car followed all laws to the letter.

Last time I checked, manslaughter wasn't legal. If we're anthropomorphising the car, it committed manslaughter - killing without intent due to negligence.

"After a very thorough review of all evidence the stack of money presented, this office has determined that there is no basis for criminal liability for the Uber corporation," wrote Yavapai County Attorney Sheila Sullivan Polk in a letter dated Monday.

I really wish they'd just write these in plain English.

As unpopular as it may be, America is a country under the law. The car followed all laws to the letter.

Jaywalkers have a high chance of dying in general. Arguably Uber increased that chance irresponsibly. That is not a criminal offense and the civil portion has already been settled. There is literally nothing the prosecutor can charge Uber with no matter how much he or she may want to.

It's not that there's nothing to charge. "Negligent Homicide" of some sort almost certainly exists in Arizona. The problem is proving the appropriate level of negligence in developing the software or the structure of the testing program. The exact level of negligence required varies by state, but usually requires failure of a specific duty owed to the victim, and oftentimes requires recklessness. Recklessness in developing/testing a complex piece of software would be difficult to prove beyond a reasonable doubt, I imagine, especially given the existence of a safety driver.

Very disappointing, surely there is some criminal level of negligence. The way they were testing was destined to fail.

Was it? I mean, did they put out the eyes of the driver or tape her phone to her hand and strap it to position it in front of her face? Who are you going to throw into prison? Engineers who didn't foresee that having this particular lump behind the wheel was no better than having no one at all? Perhaps you want to jail the hiring manager? Or do you just want to jail the whole executive board because you're angry about some contractors' rights slant and this is your way to get a pound of flesh?

Yup. Billion dollar company just can't possibly be charged, but the minimum-wage employee (contractor?) in the mind-numbing safety seat - where the car won't actually notify them when there's something to watch out for - well, they can take the fall because somebody has to.

So because they have money, and she wasn't paid what you think she needed to be paid and was bored doing a job that she took because she wasn't able to land something that was fun enough for your judgment, she's not responsible for controlling the vehicle she was driving? Jesus wept.

"After a very thorough review of all evidence the stack of money presented, this office has determined that there is no basis for criminal liability for the Uber corporation," wrote Yavapai County Attorney Sheila Sullivan Polk in a letter dated Monday.

I really wish they'd just write these in plain English.

As unpopular as it may be, America is a country under the law. The car followed all laws to the letter.

Jaywalkers have a high chance of dying in general. Arguably Uber increased that chance irresponsibly. That is not a criminal offense and the civil portion has already been settled. There is literally nothing the prosecutor can charge Uber with no matter how much he or she may want to.

It's not that there's nothing to charge. "Negligent Homicide" of some sort almost certainly exists in Arizona. The problem is proving the appropriate level of negligence in developing the software or the structure of the testing program. The exact level of negligence required varies by state, but usually requires failure of a specific duty owed to the victim, and oftentimes requires recklessness. Recklessness in developing/testing a complex piece of software would be difficult to prove beyond a reasonable doubt, I imagine, especially given the existence of a safety driver.

If you want to get all pedantic, the prosecutor could theoretically charge Uber with any offense. When I said nothing to charge I mean nothing that has even the slightest chance of resulting in a conviction.

And you're right, recklessness would be hard to prove seeing as the car was driving legally and attended by a licensed driver. While Uber took more chances than most, many of the things Uber did are comparable to other self-driving car companies. If we can pull out certain things Uber could have done and turn them into crimes that would indeed open up other companies to criminal prosecution. For example, Tesla has had fatalities that might have been prevented if they toned down their hype, gave more audible warnings, set the max autopilot speed lower, required more frequent attention tests, had harsher punishments for failing attention tests, etc.

"After a very thorough review of all evidence the stack of money presented, this office has determined that there is no basis for criminal liability for the Uber corporation," wrote Yavapai County Attorney Sheila Sullivan Polk in a letter dated Monday.

I really wish they'd just write these in plain English.

As unpopular as it may be, America is a country under the law. The car followed all laws to the letter.

Jaywalkers have a high chance of dying in general. Arguably Uber increased that chance irresponsibly. That is not a criminal offense and the civil portion has already been settled. There is literally nothing the prosecutor can charge Uber with no matter how much he or she may want to.

It's not that there's nothing to charge. "Negligent Homicide" of some sort almost certainly exists in Arizona. The problem is proving the appropriate level of negligence in developing the software or the structure of the testing program. The exact level of negligence required varies by state, but usually requires failure of a specific duty owed to the victim, and oftentimes requires recklessness. Recklessness in developing/testing a complex piece of software would be difficult to prove beyond a reasonable doubt, I imagine, especially given the existence of a safety driver.

Given the fact they were driving a car that could not preform emergency braking procedures and did not have a dedicated safety driver (the safety driver was doing things besides monitoring the road), I think they could have gotten expert witnesses involved. From the reporting involved, the Uber program was violating the industry's ethical standards as laid out by organizations like the IEEE.

"After a very thorough review of all evidence the stack of money presented, this office has determined that there is no basis for criminal liability for the Uber corporation," wrote Yavapai County Attorney Sheila Sullivan Polk in a letter dated Monday.

I really wish they'd just write these in plain English.

As unpopular as it may be, America is a country under the law. The car followed all laws to the letter.

Jaywalkers have a high chance of dying in general. Arguably Uber increased that chance irresponsibly. That is not a criminal offense and the civil portion has already been settled. There is literally nothing the prosecutor can charge Uber with no matter how much he or she may want to.

It's not that there's nothing to charge. "Negligent Homicide" of some sort almost certainly exists in Arizona. The problem is proving the appropriate level of negligence in developing the software or the structure of the testing program. The exact level of negligence required varies by state, but usually requires failure of a specific duty owed to the victim, and oftentimes requires recklessness. Recklessness in developing/testing a complex piece of software would be difficult to prove beyond a reasonable doubt, I imagine, especially given the existence of a safety driver.

Given the fact they were driving a car that could not preform emergency braking procedures and did not have a dedicated safety driver (the safety driver was doing things besides monitoring the road), I think they could have gotten expert witnesses involved. From the reporting involved, the Uber program was violating the industry's ethical standards as laid out by organizations like the IEEE.

The car could perform emergency braking. They turned off a redundant system, and Uber's system failed to correctly identify the woman. But that doesn't mean the car was fundamentally incapable of making an emergency braking maneuver. The fact that the driver was doing other things is not necessarily negligence on the part of Uber, so much as the driver.

"After a very thorough review of all evidence the stack of money presented, this office has determined that there is no basis for criminal liability for the Uber corporation," wrote Yavapai County Attorney Sheila Sullivan Polk in a letter dated Monday.

I really wish they'd just write these in plain English.

As unpopular as it may be, America is a country under the law. The car followed all laws to the letter.

Jaywalkers have a high chance of dying in general. Arguably Uber increased that chance irresponsibly. That is not a criminal offense and the civil portion has already been settled. There is literally nothing the prosecutor can charge Uber with no matter how much he or she may want to.

It's not that there's nothing to charge. "Negligent Homicide" of some sort almost certainly exists in Arizona. The problem is proving the appropriate level of negligence in developing the software or the structure of the testing program. The exact level of negligence required varies by state, but usually requires failure of a specific duty owed to the victim, and oftentimes requires recklessness. Recklessness in developing/testing a complex piece of software would be difficult to prove beyond a reasonable doubt, I imagine, especially given the existence of a safety driver.

Given the fact they were driving a car that could not preform emergency braking procedures and did not have a dedicated safety driver (the safety driver was doing things besides monitoring the road), I think they could have gotten expert witnesses involved. From the reporting involved, the Uber program was violating the industry's ethical standards as laid out by organizations like the IEEE.

The car could perform emergency braking. They turned off a redundant system, and Uber's system failed to correctly identify the woman. But that doesn't mean the car was fundamentally incapable of making an emergency braking maneuver. The fact that the driver was doing other things is not necessarily negligence on the part of Uber, so much as the driver.

I was not talking about third party hardware, I was talking about in Uber's software. Proper identification of the hazard wasn't necessary for the computer to bring the car to a stop. Uber had disabled emergency manuvers in the self driving software in order to reduce unexpected behaviors.

Yup. Billion dollar company just can't possibly be charged, but the minimum-wage employee (contractor?) in the mind-numbing safety seat - where the car won't actually notify them when there's something to watch out for - well, they can take the fall because somebody has to.

I was not talking about third party hardware, I was talking about in Uber's software. Proper identification of the hazard wasn't necessary for the computer to bring the car to a stop. Uber had disabled emergency manuvers in the self driving software in order to reduce unexpected behaviors.

Proper identification of the hazard is indeed necessary for the computer to bring the car to a stop. If this car killed someone by slamming on the brakes for a plastic bag blowing in the wind or a squirrel running on the road, you'd want blood.

There is no emergency braking software that I'm aware of that works perfectly in all situations. Manufacturers have to balance the false positives (braking for no good reason) and the false negatives (not braking when there is a reason). To prove negligence here would require a thorough study of Uber's system, all the other accepted systems, and a finding that Uber's system is clearly more dangerous overall.

?!? Doesn’t make sense to me. But can’t say I’m not surprised that the big corporate bigwigs that created the situation get off Scott free, but the low wage employee faces the fallout.

Wasn’t the low wage employee in this case specifically hired to watch the road at all times and act as the fail safe for an experimental technology? I hate corporate unfairness as much as the next guy, but surely that employee played a major part in this accident.

Yup. Billion dollar company just can't possibly be charged, but the minimum-wage employee (contractor?) in the mind-numbing safety seat - where the car won't actually notify them when there's something to watch out for - well, they can take the fall because somebody has to.

The correct term for that class of employee is "liability mop."

Sure, it’s mind numbing. But if you are a security operator whose entire job is to pay attention, and you’ve actively made the choice to watch TV on your cellphone while on the job, you deserve some blame.